CRIMINAL – Murder – Common purpose – Altercation at club – Appellant letting co-accused take his firearm which was used to murder two men – Conviction on direct and circumstantial evidence – Presence at scene, active association and intent proved – Failure to testify – Conviction upheld.
Facts: After an altercation at a restaurant and club, appellant was outside and was angered when someone called Bilal emerged with a bloody nose. He then proceeded up stairs with Accused 1 in the direction of the club. Appellant had a firearm in his hand and Accused 1 took it from him, without grabbing it or forcefully taking it. Accused 1 returned to the club and shot dead two men.
Appeal: Against the conviction on two charges of murder and sentence of life imprisonment on each count imposed by the High Court.
Discussion: The evidence of the witnesses; whether the appellant acted in common purpose with Accused 1 in the murder of the deceased; that there was no evidence of a prior agreement between Accused 1 and the appellant to murder the deceased; that the State was required to prove that the appellant had actively associated himself with the execution of the common purpose; and that concept of active association is wider than that of agreement, since it is seldom possible to prove a prior agreement.
Findings: The appellant removed his firearm from its holster and held it in his hand, with the intention of going into the club to avenge the assault on Bilal. The reason why the appellant did not proffer any resistance to the taking of his firearm and why, even then, he did not dissociate himself from the common purpose by leaving the club, is clear: he knew that Accused 1 was going to use the firearm to do precisely what appellant had intended to do from the outset – to avenge the assault on Bilal. The evidence was that after the shots had been fired, Accused 1 and the appellant ran out of the club.
Order: The appeal is dismissed.
SIWENDU AJA (SCHIPPERS JA, CARELSE JA, NHLANGULELA AJA and UNTERHALTER AJA concurring)
PROFESSION – Advocate – Misconduct – Trust account advocate – Misappropriating client’s funds – Amateurishly false version advanced to court of what became of balance of funds – Both undisciplined and ignorant of requirements of profession – No evidence that suspension of any benefit – No exceptional circumstances – Respondent’s name removed from roll of advocates.
Facts: Mr Manana (respondent) is a trust account advocate. The Legal Practice Council (LPC) contends that he is not a fit and proper person to continue acting as an advocate. It is alleged that he has failed to account to a client and has unlawfully misappropriated money from his trust account that rightfully belongs to her.
Application: In September 2022 the LPC obtained a rule nisi against the respondent which suspended him. It now seeks the confirmation of the rule which will result in the name of the respondent being finally removed from the roll of advocates.
Discussion: How the complainant mandated the respondent to recover an amount of R120,000 for her from a firm of attorneys; that he received payment of the full amount but only paid her R45,000 and retained R75,000; the proceedings of the disciplinary committee; the respondent’s explanation for why he admittedly has not paid the balance of funds; his stance that there has been a “misunderstanding”; and his version pertaining to a robbery.
Findings: The respondent has persistently demonstrated dishonest conduct, firstly towards his client by misappropriating her funds, and secondly towards this court in advancing an amateurishly false version of what became of the balance of the funds. A bleak picture has been painted of an advocate who is both undisciplined and ignorant of the requirements of his own profession. He appears to be quite indifferent to the demands of the profession that he has chosen to serve. There is no evidence that a period of suspension will be of any benefit and there are no exceptional circumstances to be found. The respondent’s name must be removed from the roll of advocates.
Order: The rule nisi is confirmed.
MOSSOP J (SHOBA AJ concurring)
INSOLVENCY – Property – Bitcoin – Cryptocurrency, like money, is movable property – Business model of MTI declared an illegal and unlawful scheme – All agreements concluded between MTI and its investors for trading in bitcoin for the purported benefit of the investors are declared unlawful and void ab initio – Insolvency Act 24 of 1936, s 2.
Facts: MTI was founded by its sole director and chief executive officer, Mr Steynberg in 2019 and invited investors to its crypto-currency club, promising returns and remunerations on bitcoin trading. During 2020 the Financial Sector Conduct Authority (FSCA), due to an anonymous disclosure, started investigating the business of MTI. A creditor and investor then brought a liquidation application and the applicants were appointed as liquidators.
Application: Seeking an order declaring that the business model of MTI is an illegal and/or unlawful scheme and that all agreements purportedly concluded with its investors for bitcoin trading to be unlawful and void ab initio.
Discussion: Non-joinder of all the investors/members; the investigation by the FSCA; the marketing and representations made to investors; the mechanism of the bitcoin trading; that MTI never achieved any growth in bitcoin as a result of trading activities; and the nature of bitcoin and “property” in terms of the Insolvency Act 24 of 1936.
Findings: Cryptocurrency, like money, is movable property for the purpose of the definition of “property” in section 2 of the Insolvency Act. The operation of MTl’s business in cyberspace is irrelevant. MTI is domiciled in South Africa and its movable property, wherever situated, is considered to be present at its domicile. MTl’s business clearly amounted to an unlawful ponzi-scheme. It was a fraudulent investing scam promising high rates of return to investors and generating returns for earlier investors with investments taken from later investors. It appeared that there was no pool of members bitcoin, Trade 300 does not exist, the artificial intelligence bot never existed or traded, and the remarkable trading results presented to investors were prima facie false.
Order: The business model of MTI is declared to be an illegal and unlawful scheme. All agreements concluded between MTI and its investors in respect of the trading/management/investment of bitcoin for the purported benefit of the investors, are declared unlawful and void ab initio.
DE WET AJ
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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